Microsoft challenges U.S. ruling that government authorities should have direct access to private online data

Jason Walker

Microsoft

Posted on 16th September 2015 at 13:36.

A bitter battle is currently raging between Microsoft and the U.S. government. What’s the issue? Well, it concerns the issue of online data and who should have direct access to it. Why should it matter to you? Well, this is a test case which will determine the extent of the U.S. government’s powers over tech companies that offer cloud-based services. If the U.S. authorities win the case the ramifications for every online user are enormous. What price privacy? Data shared is, they argue, data compromised. So what exactly is going on, and how might the ruling affect you and your business?

Microsoft is set to return to court to continue its fight against the US government’s demand that it hand over emails which are alleged to contain details of narcotic sales stored at an Irish data centre. Microsoft wants to fight an earlier 2014 court ruling which ruled in favour of the U.S government’s claim that because it had jurisdiction over Microsoft, a the US-based company, it could therefore force it to hand over the data it controlled, even if stored abroad. Should that ruling be upheld the ramifications are far-reaching and could potentially affect any business which stores its data online.

Microsoft naturally disputes the ruling, claims it would put the company in breach of privacy laws. Microsoft argues that that the U.S. authorities should respect the sovereignty of other countries, and that Washington should instead use legal assistance treaties if it wants access to information held in Ireland and other data centres outside the United States. Ireland, for its part, has already said that it would consider such a request “expeditiously”.

What about other U.S-based tech companies? How are they responding to the issue? Well, according to Carsten Casper, from tech consultancy, Garner, Apple, Amazon, HP, eBay, AT&T, Verizon and Salesforce are voicing their support for Microsoft’s appeal. Casper told the BBC:

“They think they have already lost quite a lot of business in Europe over monitoring and surveillance concerns, and they are afraid it will get worse if there is a perceived carte blanche for the U.S. authorities to access emails stored abroad.”

“The EU has stronger privacy requirements, at least on paper, compared with other parts of the world, so tensions between the U.S. and Europe are highest. But other countries are also concerned by US access to foreign records,” he added.

Why is Microsoft fighting the case so fiercely? Well, it says it wants to ensure people can “trust the technology on their desks and in their pockets”. The company’s lawyer, Brad Smith, told the Council on Foreign Relations think tank:

“If the U.S. government is permitted to serve warrants on tech companies in the United States and obtain people’s emails in any country, it will open the floodgate for other countries to serve warrants on tech companies for the private communications of American citizens that are stored in the United States in a data centre owned by a foreign company.”

“Imagine the immediate implications for journalists, advocacy organisations, or government officials here.”

What have the U.S authorities had to say about the case? Well, federal prosecutors claim that in such cases it can typically takes months to obtain information via treaty requests. Therefore, it is arguing for warrants issued directly to US companies, as these can be handled much more quickly. In a further swipe at the technology giant, prosecutor’s also claim that Microsoft’s system of storing data where customers say they are based is open to abuse. They stated in court papers:

“A criminal user can easily manipulate such a policy to evade the reach of U.S. law enforcement by the simple expedient of giving false residence,” they state in court papers.

Moreover, prosecutors claim that U.S.-based bodies have a legal obligation to comply with warrants issued under the Stored Communications Act, regardless of where the related electronic records are kept:

“With the benefits of corporate citizenship in the United States come corresponding responsibilities, including the responsibility to comply with a disclosure order issued by a US court.”

“Microsoft should not be heard to complain that doing so might harm its bottom line.”

Microsoft’s lawyer has said on record that if it loses the appeal, he will try to take the matter “all the way to the Supreme Court”.

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